Massachusetts Law Review

Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters

Joseph M. Makalusky is an associate with Ellis & Rapacki concentrating in complex civil litigation. The opinions expressed herein are those of the author and do not necessarily reflect those of Ellis & Rapacki.

I. Introduction
Our world grows smaller with each passing day. More than just a simplistic truism, this reality has profound effects upon the nature and scope of litigation conducted in Massachusetts and elsewhere. In fact, as the web woven around the world by the Internet draws consumers and businesses closer together, residents of Massachusetts transact with international entities on a daily basis. Beyond that, foreign countries have been actively encouraged to create business relationships within our boundaries in an effort to strengthen and diversify our economy.1 Given the porous nature of our economic borders at this time, it must be anticipated that litigation in this commonwealth will necessarily involve multi-national parties on a more frequent basis. Moreover, it would indeed be a mistake to assume that only certain types of cases exemplify this phenomenon, as even the most seemingly mundane fact patterns can breed transnational litigation nowadays.2 As one commentator poignantly warned, "[c]ounsel who did not previously view their practice or clients as international in nature are being called on to respond to requests for international discovery with increasing frequency."3 Thus, in order to counsel clients effectively on either side of the "v," Massachusetts practitioners will be obliged to familiarize themselves with the complexities inherent to litigation involving foreign parties. Perhaps most crucial is the need to be cognizant of the various laws and procedures that may potentially control the discovery process. In this regard, a litigant's working knowledge of the Hague Convention On The Taking Of Evidence Abroad In Civil Or Commercial Matters (hereinafter "Hague Evidence Convention")4 is of vital importance. Despite the significance of the Hague Evidence Convention, neither the Supreme Judicial Court nor the Appeals Court has yet to confront the treaty and analyze its interplay with the Massachusetts Rules of Civil Procedure.5 Hence, the modest goal of this article is to provide some introduction to those unfamiliar with the Hague Evidence Convention and to propose a basic procedural framework for those confronting the treaty in practice.6
Part II of this article, therefore, describes the discovery procedures contained in the three chapters that comprise the Hague Evidence Convention.7 In Part III, the United States Supreme Court's interpretation of the treaty announced in Societe Nationale Industrielle Aerospatiale v. United States District Court for Southern District of Iowa,8 and the resulting three-part legal test used in analyzing the interplay between the Hague Evidence Convention and local rules of civil procedure are explained.9 Following a review of the approaches taken by the states of New Jersey and Texas, a proposed procedural guide to assist in the undertaking of the international comity analysis in the state courts of Massachusetts is offered in Part IV.10 In conclusion, Part V urges the Supreme Judicial Court and the Appeals Court to provide some instruction to the judges and litigants who must faithfully attempt to apply the Aerospatialetest.
II. The Supreme, But Not the Only, Law of the Land
As its name aptly suggests, the Hague Evidence Convention is an international treaty designed to facilitate the discovery requests made by one contracting state for evidence located abroad in another contracting state.11 The United States12 and 36 other nations13 are parties to this agreement as of the time of this writing, although it must be noted that the treaty has not entered into force between the United States and all of these sovereignties.14 Given its status as a ratified treaty, the Hague Evidence Convention stands on par with the Federal Rules of Civil Procedure and other federal statutes as "the supreme law of the land" in this country.15 The treaty itself is comprised of three chapters: the first concerns Letters of Request; the second involves the use of Diplomatic Officers, Consular Agents and Commissioners to obtain evidence; and the third contains provisions of general application and certain relevant exclusions. Each will be addressed briefly in turn.
Under the first chapter of the Hague Evidence Convention, which encompasses the initial 14 Articles, the procedures for Letters of Request are established. While the Letters of Request are essentially the same creature as the dreaded Letters Rogatory,16 the Hague Evidence Convention attempts to minimize the expense and delay of these discovery requests between the contracting states. Thus, the contracting states are obliged to establish a "Central Authority" to accept and administer all Letters of Request17 and to execute such requests "expeditiously."18 Nevertheless, experience has taught that the procedures are time-consuming,19 and, according to the United States Department of State's estimation, a Letter of Request will still linger for some six months to a year before execution.20 On its face, the treaty also eliminates the expense associated with translation by permitting requests to be made in English.21 Yet, the Hague Evidence Convention also allows a contracting state to mandate that requests be translated into the native tongue, and many countries have taken advantage of this option.22 Overall, although the Hague Evidence Convention made great strides towards simplifying and unifying the international discovery process, resort to its procedures are a necessarily time-consuming and costly endeavor. The Hague Evidence Convention's second chapter, appropriately entitled "Taking Of Evidence By Diplomatic Officers, Consular Agents And Commissioners," authorizes a state's diplomatic officer or consular agent to undertake discovery within the territory of another contracting state.23 The diplomatic officer's power to obtain discovery does not, however, extend to compelling compliance.24 Moreover, given the serious infringement upon notions of sovereignty, especially in civil law nations, a number of contracting states have expressly limited, or excluded in whole, this method of discovery pursuant to Article 33 of the treaty.25 In reality, therefore, this method of obtaining discovery is of limited utility.
In the third and final chapter, the Hague Evidence Convention relates certain general provisions.26 Perhaps the most important provision to members of the Massachusetts Bar is Article 23. There, "[a] Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries."27 To date, over 78 percent of the contracting states (29 of the 37 parties) have closed their doors to "pre-trial discovery" pursuant to this provision.28 Obviously, the exception will swallow the rule in most cases and discovery under the Hague Evidence Convention will be essentially fruitless. An early example was that of one practitioner who actually sought discovery from Germany and England pursuant to the treaty and was ultimately stymied in his efforts to obtain documentary evidence.29 While certain depositions were permitted, it took more than a year after the request was made in England and nearly two years in Germany.30 Just as a Special Commission on the operation of the Hague Evidence Convention ominously warned in November 1985, "the combined effect of a blocking statute31 and a general, unrestricted reservation under Article 23, may paralyse the [Hague Evidence] Convention and have caused the courts in the United States not to use the [Hague Evidence] Convention."32 Two years later, the Supreme Court would indeed declare that, although it may be the "supreme law of the land," the Hague Evidence Convention is not the only law of this land.
III. Applying the Hague Evidence Convention at Home
In Societe Nationale Industrielle Aerospatiale v. United States District Court for Southern District of Iowa,33 (hereinafter "Aerospatiale") the United States Supreme Court, in a 5-4 decision,34 addressed the relationship between the Hague Evidence Convention and the Federal Rules of Civil Procedure. More specifically, the court was concerned with the extent to which the federal district courts should apply the Hague Evidence Convention in the discovery process of transnational litigation.35 In so doing, the court considered whether the Hague Evidence Convention, as a result of either the treaty's express language or the application of international comity principles,36 constituted the exclusive means for obtaining evidence located abroad or, at least, mandated initial resort to its procedures.37 In the end, the court declared that the Hague Evidence Convention was not a mandatory discovery device, and, further, that there was no justification for imposing a rule of first-resort to the treaty.38 By way of background, the underlying litigation in Aerospatiale was initiated against two corporations owned by the Republic of France after an airplane they manufactured crashed in Iowa.39 Without contesting personal jurisdiction, the defendants answered the complaint and engaged in initial discovery pursuant to the Federal Rules of Civil Procedure.40 The defendants' cooperation was, apparently, limited to discovery requests directed towards material or information located in the United States.41 Thus, when the plaintiffs' second set of discovery requests sought material located in France, the defendants moved for a protective order on the ground that the Hague Evidence Convention had to be invoked.42 Further, the defendants complained that any other method of discovery would subject them to criminal liability under France's "blocking statute."43 Following the denial of their motion (except as to oral depositions that were to be taken in France) the defendants sought a writ of mandamus from the Eighth Circuit.44 Recognizing that this was a "novel and important" question of law, the Eighth Circuit agreed to review the discovery order.45 Ultimately, the court denied the defendants' petition.46 As the Eighth Circuit saw it:
The better rule, which has been adopted by the vast majority of courts, is that when the district court has jurisdiction over a foreign litigant the Hague [Evidence] Convention does not apply to the production of evidence in that litigant's possession, even though the documents and information sought may physically be located within the territory of a foreign signatory to the [Hague Evidence] Convention.47 The court further reasoned that French sovereignty or custom would not be threatened, since the discovery was to be conducted within the United States.48 International comity, it was also held, did not mandate a rule of first resort to the treaty. The court believed that "'the greatest insult to a civil law nation's sovereignty would be for American courts to invoke the foreign court's judicial aid merely as a first resort, subject to the eventual override of their rulings under the Federal Rules of Civil Procedure.'"49 Finally, the court concluded that the magistrate judge properly balanced the competing interests in deciding that discovery should proceed under the Federal Rules of Civil Procedure notwithstanding the criminal laws of France.50 From there, the case found its way to the United States Supreme Court.
Delving into the text and history of the treaty, the Supreme Court concluded that the Hague Evidence Convention constituted an available, but by no means mandatory, discovery device.51 Similarly, the majority declined the invitation to impose a rule or presumption that the Hague Evidence Convention would be the procedure of first choice in any given case.52 Not only was there a lack of textual support for such a proposition, the court expressly declared that notions of international comity did not favor such an overarching policy in this regard.53 Instead, it was left to the trial courts to scrutinize each case based on "the particular facts, sovereign interests, and likelihood that resort to [the Hague Evidence Convention] procedures will prove effective."54 It was this ad hoc approach to the Hague Evidence Convention that spawned dissent. Indeed, the entire court was in agreement that the treaty was not the exclusive means of obtaining discovery from signatory nations, but those in dissent would have preferred to fashion a rule of first resort to the Hague Evidence Convention absent a showing of "strong indications that no evidence would be forthcoming."55
Even before the Supreme Court could unveil its legal test to the world, there were those who expressed concerns about the vagueness of the test and the inherent difficulties that would arise therefrom. It was Justice Blackmun's observation that "[e]xperience to date indicates that there is a large risk that the case-by-case comity analysis now to be permitted by the Court will be performed inadequately and that the somewhat unfamiliar procedures of the [Hague Evidence] Convention will be invoked infrequently."56 Subsequently, commentators also suggested that Aerospatiale jeopardized uniformity and devised an international comity analysis that was, given the absence of greater guidance, difficult to apply.57 Flawed or not, the majority's holding represents the Court's interpretation of an international treaty and, for that reason, must be given precedential effect.
On the heels of the Aerospatiale decision, there also arose some questions concerning the application and force of the Supreme Court's pronouncements in the arena of state court discovery proceedings.58 Any such discussion must begin with the axiom that the Supreme Court's interpretation of a treaty is binding upon each of the nation's courts, be it federal or state.59 Thus, no court may attempt to construe the Hague Evidence Convention as a mandatory procedure, nor read a rule of first resort into the text of the treaty.60 By the same token, state and federal courts are not free to declare that notions of international comity mandate a general rule of exclusive or primary use of the Hague Evidence Convention. Indeed, the Supreme Court declared that international comity "requires in this context a more particularized analysis of the respective interests of the foreign nation and the requesting nation than [a] proposed general rule would generate."61 This construction of international comity as applied to the Hague Evidence Convention amounts to a declaration of federal common law that is binding upon the courts.62 In spite of the foregoing, some have opined that states "remain free to apply . . . a [first-use] rule for reasons of judicial administration."63 But, there is precious little to support the contention that notions of "judicial administration" authorize a state to apply an international treaty in a manner that was specifically rejected by the Supreme Court. It is of no use to rely upon the unremarkable fact that, in certain contexts, "state courts have taken positions more deferential to foreign interests than federal courts."64 Such examples involve situations where states afford greater rights or protection by applying state law, rather than by transmogrifying the legal test of an applicable federal law.65 Perhaps, then, one might legitimately argue that states could interpret (or more likely amend) their local rules of procedure to require first resort to any applicable international treaty, interstate compact or foreign law for the purpose of requesting discovery. As for now, it is difficult, to say the least, to reconcile the suggestion that "state courts [could] conclude that it simply is more efficient to apply the principle of comity by way of a general rule,"66 with the Supreme Court's ultimate conclusion that "international comity requires in this context a more particularized analysis . . . than [a] general rule would generate."67 Said again, states are not free to declare, for obvious reasons, that a federal law will apply differently within their state than it does in any other jurisdiction. "It is fundamental to our constitutional scheme that in dealing with other nations the country must speak with a united voice."68
IV. A Proposal for Taking International Comity
Seriously
While the Supremacy Clause commands compliance with international treaties, the Hague Evidence Convention, as the Supreme Court opined, enjoys no monopoly over the discovery methods available in international litigation.69 Hence, our local rules of civil procedure provide a suitable alternative for obtaining evidence located abroad. In this sense, the Massachusetts Rules of Civil Procedure are on a collision course with the Hague Evidence Convention, and principles of international comity will determine the outcome. As our appellate courts have not yet led Massachusetts practitioners through this intersection, there exists a need for a procedural roadmap with which to navigate state civil actions through the comity analysis. Along the way, guidance will be sought from the travels of both New Jersey and Texas.
A. New Jersey's Approach
A rather eccentric approach to the task of comparing state rules of procedure with the Hague Evidence Convention was undertaken by New Jersey in Husa v. Laboratoires Servier SA.70 There, personal injury claims were asserted as a proposed class action against a French pharmaceutical company and others.71 When the plaintiffs sought to depose certain high-ranking current and former employees who lived in France, the defendant moved for an order requiring such discovery to be taken pursuant to the Hague Evidence Convention.72 On appeal from the denial of the defendant's requested order, the court addressed the choice of law question as between the New Jersey discovery rules and the Hague Evidence Convention.73 In the end, the court held that "the Convention should be utilized unless it is demonstrated that its use will substantially impair the search for truth, which is at the heart of all litigation, or will cause unduly prejudicial delay."74 By this stroke of the pen, the Husa court essentially resurrected the legal test that was laid to rest by the Supreme Court in Aerospatiale.75 In the same motion, the court overruled sub silentio its opinion rendered six years earlier in Moake v. Source International Corp., 76 wherein the court relied upon Aerospatiale in upholding a trial judge's use of the New Jersey discovery rules in lieu of the Hague Evidence Convention. In a reversal of roles, the Moake court had declared that its prior decision in Vincent v. Ateliers de la Motobecane, S.A.,77 which imposed a rule of first resort to the Hague Evidence Convention, was superseded by Aerospatiale.78 Put simply, the Husa rationale inspires little confidence in its logic.
Notably, since the Supreme Court's pronouncement in Aerospatiale, no other state court has adopted the approach taken by New Jersey.79 There is good reason why Husa's path has been the one less traveled. To begin, the decision is simply a veiled refusal to follow the Supreme Court's pronouncements regarding the treaty. In deciding that international comity counseled a different approach in New Jersey, the court sought to display its "cosmopolitan approach to litigation" and its "sensitivity to the concerns of [its] trading partners."80 While the Husa court explicitly acknowledged that it was "bound by the majority's construction of the [Hague Evidence] Convention in Aerospatiale," it "perceive[d] no conflict with federal supremacy, if, in exercising the option to resort to the [Hague Evidence] Convention, [it was] more generous in [its] use of the [Hague Evidence] Convention's procedures than the United States' courts."81 Such munificence, however, was based in part on the court's reversal of its position in Moake on the ground that "the three factors mentioned in Moake82 as justifying disregard of the [Hague Evidence] Convention probably are present in every case and effectively would abrogate the [Hague Evidence] Convention in New Jersey."83 In this way, the Husa court, whether by oversight or design, rejected the Supreme Court's interpretation of international comity, as the "three factors" referred to in Moake were actually borne from the Aerospatiale decision. Recall, the majority's refusal in Aerospatiale to adopt a general presumption of first resort to the Hague Evidence Convention was based on, inter alia, the conclusion that the interests of international comity were best served by conducting a "particularized analysis" of each individual case.84 The court further instructed that such analysis should include an inspection of the sovereign interests involved and the effectiveness of the treaty.85 As previously explained, "[s]tate courts are almost certainly required, at a minimum, to apply the same general comity analysis to foreign discovery as Aerospatiale requires of federal courts."86 This is but one reason why the Husa decision is inherently flawed.
The Husa court also sought support for its position from the 1989 Special Commission of the Hague Conference Report.87 In so doing, the court emphasized that the 1989 Special Commission "'encouraged the giving of 'priority' to the procedures of the Convention when evidence located abroad is being sought . . . .'"88 Conspicuously overlooked by the court, however, was the fact that the Supreme Court in Aerospatiale had the benefit of the Special Commission's earlier report of 1985.89 In that 1985 session, the Special Commission specifically observed that "[m]any United States courts [had] ruled that the treaty, even though non-exclusive, should be applied on the basis of international comity."90 "The Special Commission was unanimously of the opinion that the use of the [Hague Evidence] Convention should be encouraged, since its use can help to avoid conflicts."91 Notwithstanding the Special Commission's position, the Supreme Court concluded that international comity did not mandate initial resort to the treaty.92 In light of this, the Special Commission's 1989 report provides, at best, an illusory foundation for the Husa decision.
Finally, the Husa court's expressed concern for unity rings hollow. The court decried that the "'application of the result in Aerospatiale, and judicial enthusiasm for the [Hague Evidence] Convention have not been uniform,'"93 and cited examples of cases where the treaty was employed and those where it had not been used.94 Nevertheless, in creating an ad hoc test, the Supreme Court neither expected, nor necessarily desired, uniformity in resorting to the Hague Evidence Convention's procedures. Rather, what the court envisioned was the creation of a unified procedure for determining whether the treaty would be applied in any given case. As the court reasoned, the use of the optional treaty method was highly dependent upon the particular facts and circumstances surrounding each situation.95 Since no two cases are exactly alike, the alternating use of the Hague Evidence Convention and local rules of procedure is hardly surprising. While there have certainly been legitimate complaints with the lack of specificity in the procedural application of the court's legal test,96 the holding that the Hague Evidence Convention is an appropriate discovery tool whose use will be determined by applying principles of comity represents the court's attempt to have "the country . . . speak with a united voice."97
Whatever disagreement there may be with the Aerospatiale test, it must at least be recognized that the court's decision mustered a certain degree of harmony. Prior to that decision, there was wide disparity in the treatment of the Hague Evidence Convention within the United States.98 Some courts concluded that it was a mandatory procedure,99 others held that it was simply inapplicable when personal jurisdiction was established,100 while still others concluded that, although not exclusive or mandatory, it was to be the means of first resort.101 As to these issues, Aerospatiale solidified our country's position thusly: the Hague Evidence Convention is not mandatory; the Hague Evidence Convention is applicable to the production of evidence located abroad even when personal jurisdiction has been established; and a general rule of first resort to the Hague Evidence Convention is neither required nor wise.102 It is, therefore, more than slightly ironic that the Husa court sought uniformity, because by creating a presumptive use test in New Jersey it throws that state out of step with every federal court in this country and with every state court that has confronted the issue since Aerospatiale.103 More than that, "[d]iverse state pronouncements on what international comity requires might [actually] undermine this interest [of uniformity]."104 As shown, instead of fostering the interests of international comity, the Husa decision actually does violence to those principles and serves as an ill-advised model for other state courts.
B. Texas Alternative
In Th. Goldschmidt A.G. v. Smith,105 Texas established its position with respect to the Hague Evidence Convention some three years prior to Aerospatiale. In the underlying action, suit was brought against a West German corporation for allegedly selling, through an American subsidiary, substandard chemicals.106 As part of discovery, the trial judge ordered the disclosure of documents located in West Germany, and further compelled the defendant corporation to submit to depositions within the borders of West Germany.107 The defendant petitioned for a writ of mandamus, submitting that the trial judge's order violated international law insofar as the Hague Evidence Convention served as the sole means for obtaining discovery from within West Germany.108 The appellate court refused to conclude that the treaty was a mand
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